State v. Angle

• Citation: 233 W.Va. 555,759 S.E.2d 786
• Decision Date: 05 June 2014
• Docket Number: No. 13–0574.,13–0574.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Carlos ANGLE, Defendant Below, Petitioner and State of West Virginia, Plaintiff Below, Respondent v. Carlos Angle, Defendant Below, Petitioner.

233 W.Va. 555

759 S.E.2d 786

STATE of West Virginia, Plaintiff Below, Respondent

v.Carlos ANGLE, Defendant Below, PetitionerandState of West Virginia, Plaintiff Below, Respondent

v.Carlos Angle, Defendant Below, Petitioner.

No. 13–0574.

Supreme Court of Appeals of

West Virginia.

Submitted April 8, 2014.

Decided June 5, 2014.

Syllabus by the Court

1. “When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction.” Syl. Pt. 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

2. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

3. “Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.” Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

4. “A recidivist sentence under W.Va.Code § 61–11–19 (1943) (Repl.Vol.2010) is automatically vacated whenever the underlying felony conviction is vacated.” Syl. Pt. 3, Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013).

Robyn M. Danford, Esq., Whiteman Burdette, PLLC, Fairmont, WV, Eric K. Powell, Esq., Powell Law Office, Parkersburg, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Laura Young, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

The petitioner and defendant below, Carlos Angle, appeals the April 17, 2013, final order of the Circuit Court of Marion County sentencing him to imprisonment in the penitentiary for life. The petitioner's sentence resulted from two separate convictions. He was first found guilty by a jury of sexual abuse in the first degree on July 28, 2011. Following that conviction, the State filed a recidivist information ¹ against the petitioner that resulted in a second jury conviction pursuant to West Virginia Code § 61–11–19 (2010) ² on January 30, 2013. The petitioner appealed each conviction separately,³ but this Court consolidated the appeals for purposes of argument and decision by order entered February 11, 2014.

Upon consideration of the parties' briefs and oral argument, as well as the submitted records and pertinent authorities, we find merit to the petitioner's contention that the circuit court committed reversible error during his first trial by allowing the admission of certain evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.⁴ Accordingly, for the reasons set forth below, we reverse the petitioner's conviction of sexual abuse in the first degree and vacate his recidivist conviction.

I. Factual and Procedural Background

The petitioner's conviction of sexual abuse in the first degree resulted from events that occurred on October 30, 2008. At approximately 2:00 a.m. that day, the petitioner and two other men went to the apartment of Kassandra Huffman and her boyfriend, Larry Broadwater, in Fairmont, West Virginia. The petitioner was acquainted with Ms. Huffmanand her boyfriend because he had previously lived in the same neighborhood. According to Ms. Huffman, the petitioner and the other men were drinking beer and were already intoxicated. Another friend of Ms. Huffman and Mr. Broadwater, Josh Dieffenbauch, arrived a short time later. Thereafter, the two men who had arrived with the petitioner left the apartment. At some point, Mr. Broadwater told the petitioner that he also needed to leave. Mr. Broadwater indicated that he needed to go to bed because he was scheduled to work that morning. The petitioner and Mr. Dieffenbauch left the apartment at the same time.

According to Mr. Dieffenbauch, before he parted ways with the petitioner, the petitioner told him that he was going back to Ms. Huffman's apartment to sleep on her couch. Mr. Dieffenbauch then sent a text message to Ms. Huffman, telling her, “Don't answer the door. It's Carlos.”

Ms. Huffman was asleep and did not hear Mr. Broadwater leave for work that morning. At the petitioner's trial, Ms. Huffman testified that when she woke up she realized that someone was in her room. She then became aware that the petitioner was in her bed with his shirt off, his pants around his knees and his penis between her legs. Ms. Huffman testified that the petitioner had also pulled her underwear down around her knees. According to Ms. Huffman, she leapt from the bed and ran into the bathroom saying, “Hey, man, what are you going [sic]?” and “Get the f* * * out of my house.” She locked herself in the bathroom and did not come out until she heard the petitioner leave the apartment. She then called Mr. Broadwater and 911.

Sergeant William Pigott of the Fairmont Police Department responded to the 911 call. After speaking with Ms. Huffman, Sergeant Pigott located the petitioner and interviewed him.⁵ The petitioner confirmed that he had been at Ms. Huffman's apartment, stating that Ms. Huffman and Mr. Broadwater wanted to obtain drugs from him. The petitioner denied using or possessing drugs. He stated that Ms. Huffman had offered to have sex with him if he would obtain drugs for her. The petitioner admitted leaving the apartment, and then returning, stating he believed Ms. Huffman had offered to have sex with him even though she understood that he did not trade, sell or use drugs.

As a result of these events, the petitioner was indicted on one count of burglary and one count of sexual assault in the second degree. Prior to the petitioner's trial on these charges, the State filed a notice of intent to use evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence, seeking to present evidence that the petitioner had been subsequently charged with sexual assault in the second degree, sexual abuse in the first degree and conspiracy to commit a felony. These offenses were allegedly committed by the petitioner in June 2009, while he was at a party in the neighborhood where Ms. Huffman lived. The alleged victims were a female adult and a female juvenile. Following a hearing on the matter, the trial court ruled that the evidence would be admissible at trial.

At trial, the State's primary witness was Ms. Huffman. In addition, the State presented the 404(b) evidence through the testimony of Officer Pigott who told the jury that he had investigated allegations that the petitioner had sexually assaulted and/or abused a female adult and a juvenile at a party in June 2009. Officer Pigott testified that he had interviewed the petitioner with regard to these allegations and that the petitioner had stated that any sexual contact he had with the adult victim had been consensual. While Officer Pigott testified that there was also a juvenile victim, he never explained the basis for the allegation.

After the State presented its case, the petitioner moved for a judgment of acquittal. The court denied the motion with regard to the burglary charge, but granted, in part, the motion with regard to the charge of sexual assault in the second degree, finding that the jury could only consider the lesser included offense of first degree sexual abuse as the State had failed to present evidence to establishthe greater offense.⁶ Following deliberations, the jury acquitted the petitioner of the burglary charge but found him guilty of sexual abuse in the first degree.

Thereafter, the State filed a recidivist information against the petitioner and obtained a jury conviction on January 30, 2013. At the petitioner's sentencing hearing on March 19, 2013, the court ordered that he be confined in the penitentiary for life pursuant to West Virginia Code § 61–11–18(c) (2010).⁷ The final order was...